Opinion
No. 07-40671 Summary Calendar.
November 25, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:06-CR-1341-1.
Before KING, DENNIS, and OWEN, Circuit Judges.
Ricardo Gonzalez-Camacho appeals the 188-month sentence imposed following his jury trial conviction of conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2; and importation of more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(b)(1) and 18 U.S.C. 2. Gonzalez-Camacho's sentence was within a properly calculated advisory guidelines range that reflected the quantity of drugs for which he was held accountable as well as an enhancement for obstruction of justice.
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court's sentencing decisions for reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007). First, we consider whether the sentence imposed is procedurally sound. Id. at 597. Thereafter, we consider whether the sentence is substantively reasonable, using an abuse-of-discretion standard. Id. A sentence imposed within a properly calculated guideline range is entitled to a rebuttable presumption of reasonableness. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Gonzalez-Camacho first contends that Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which issued after his sentencing, abrogated the rationale of previous Fifth Circuit decisions by broadening the district court's discretion to impose a nonguidelines sentence. He argues, therefore, that the sentencing court labored under a misconception that it could not sentence him below the Guidelines in the absence of "extraordinary circumstances" or based on the court's disagreement with guidelines policy. Because this theory was not argued in the district court, we review for plain error. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008). Nothing in the record suggests that the district court was constrained by this court's precedent from considering all of Gonzalez-Camacho's arguments for a non-guidelines sentence. Accordingly, there was no plain error. See id.
Citing the Supreme Court's decisions in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (2007), and Rita, 127 S.Ct. at 2462, Gonzalez-Camacho next argues that the within-guidelines sentence imposed in his case should not be accorded a presumption of reasonableness. Gonzalez-Camacho contends that the justification for applying a presumption of reasonableness in his case is undercut because U.S.S.G. §§ 2D1.1, the Guideline used to calculate his advisory sentencing guidelines range, was not promulgated according to usual Sentencing Commission procedures and did not take into account "empirical data and national experience." Gonzalez-Camacho portrays the Kimbrough decision as having "suggested" that the appellate presumption should not be applied to Guidelines that did not take account of this data and experience.
Our reading of Kimbrough does not reveal any such suggestion. The question presented in Kimbrough was whether "a sentence . . . outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses." 128 S.Ct. at 564. Speaking specifically to the crack cocaine Guidelines, the Court simply ruled that "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence 'greater than necessary' to achieve § 3553(a)'s purposes, even in a mine-run case." Id. at 575. In Kimbrough, the Court said nothing of the applicability of the presumption of reasonableness.
The appellate presumption is therefore applicable in this case. After reviewing for procedural errors and considering the substantive reasonableness of the sentence, we hold that Gonzalez-Camacho's appellate arguments fail to establish that his sentence is unreasonable.
Accordingly, the district court's judgment is AFFIRMED.